Order Fixing February 1, 2024 as the Day on Which Certain Provisions of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act Come into Force: SI/2023-65
Canada Gazette, Part II, Volume 157, Number 23
SI/2023-65 November 8, 2023
AN ACT TO AMEND THE DIVORCE ACT, THE FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT AND THE GARNISHMENT, ATTACHMENT AND PENSION DIVERSION ACT AND TO MAKE CONSEQUENTIAL AMENDMENTS TO ANOTHER ACT
Order Fixing February 1, 2024 as the Day on Which Certain Provisions of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act Come into Force
P.C. 2023-1053 October 20, 2023
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, under subsection 126(2) of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, chapter 16 of the Statutes of Canada, 2019, fixes February 1, 2024 as the day on which subsections 16(1) and (3) and 28(4) and sections 30 and 36 of that Act come into force.
(This note is not part of the Order.)
Pursuant to subsection 126(2) of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (the Act), the Order fixes February 1, 2024, as the day on which subsections 16(1) and (3) and 28(4) and sections 30 and 36 of the Act come into force.
The objective of the Order in Council (OIC) is to fix a specific date for the coming into force of the provisions implementing the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007 Convention) under the amended Divorce Act. These provisions implement the 2007 Convention under federal legislation by aligning federal family law with the 2007 Convention. To do so, former Bill C-78 gives “force of law” to the 2007 Convention and then makes several specific amendments to the Divorce Act to clarify the application of the 2007 Convention in the Divorce Act context.
Currently, Canada is not a party to any international agreement with respect to family support. The international recovery of family support is achieved through reciprocity arrangements between individual provinces and territories and certain foreign countries to provide each other with support services.
The 2007 Convention provides the legal framework for cross-border recognition and enforcement, establishment and modification of family support orders and agreements. It establishes an international system for administrative cooperation by requiring that a Central Authority be designated for each State Party to process international family support applications and implement Convention obligations. In federal States such as Canada, the 2007 Convention also allows designation of Central Authorities for each territorial unit to which the 2007 Convention has been extended.
The 2007 Convention also includes a federal State clause. This clause enables Canada to ratify the 2007 Convention and only extend its application to those provinces and territories that have implemented the 2007 Convention in their legislation and have indicated their interest in having the 2007 Convention apply to them. Canada can submit subsequent declarations extending the application of the 2007 Convention to other provinces and territories.
Changes to the Divorce Act
Former Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, which received royal assent on June 21, 2019, strengthens and modernizes Canada’s family justice system, promotes access to justice and makes federal family laws more responsive to Canadian families’ needs.
Among the many amendments brought by former Bill C-78, the legislation adds a new chapter to the Divorce Act, including a series of provisions that serve to implement the 2007 Convention under federal legislation. These provisions set out the types of 2007 Convention support applications that may be recognized and enforced, modified or established pursuant to the Divorce Act. They provide authority for a Central Authority in a province or territory where the Convention applies to assist with these applications. For example, changes to the Divorce Act provide that a support creditor may, through the Central Authority of the State in which the Convention applies in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.
Steps towards ratification
Legislation to implement the 2007 Convention was adopted in three provinces, including British Columbia (March 2022), Manitoba (June 2022) and Ontario (June 2023). Manitoba and Ontario wrote to the federal Minister of Justice asking that Canada ratify the 2007 Convention and extend the application of the 2007 Convention to their jurisdiction and, therefore, at this time, steps are being taken to have the Convention apply in these provinces only.
A separate OIC is being sought to grant authority for the Minister of Foreign Affairs to take the actions necessary to ratify the 2007 Convention on behalf of Canada. Canada’s ratification of the 2007 Convention will be timed to allow the entry into force of the 2007 Convention to align with the coming into force of these Divorce Act provisions.
This Order makes it clear when the new provisions of the amended Divorce Act come into force. Coming into force of these provisions will also coincide with the coming into force for Canada of the 2007 Convention internationally (i.e. February 1, 2024).
As of August 2023, the Convention is in force in 45 States and regional economic integration organizations, including the United States of America, the United Kingdom, New Zealand, and the European Union. Ratification of the 2007 Convention will increase the number of countries with which Canadian jurisdictions have reciprocity, resulting in more family support flowing to Canadian families and children. Its ratification will make it easier to have Canadian child and spousal support orders recognized and enforced across international borders, as between States Parties to the 2007 Convention. It will also provide a means for Canadians to establish and vary child support orders in those States.
Becoming a party to the 2007 Convention will contribute to former Bill C-78 objectives of reducing child poverty and increasing the efficiency of the family justice system.
Consultations with the provinces and territories on the implementation of the 2007 Convention in Canada have been ongoing since 2007 and have occurred through meetings of the Federal-Provincial-Territorial (FPT) Inter-jurisdictional Support Sub-committee, and the FPT Coordinating Committee of Senior Officials – Family Justice. Consultations also took place with legal experts and organizations representing the Canadian private bar. Consultations with Indigenous groups took place in 2007 and 2016. Letters notifying Indigenous groups of Canada’s ratification of the 2007 Convention will be sent out to coincide with ratification. Stakeholders have not raised any concerns.
Consultations with Manitoba and Ontario officials to coordinate the coming into force of federal and provincial implementing legislation with the coming into force of the 2007 Convention for Canada have been ongoing. Ontario’s implementing legislation, the International Recovery of Child Support and Family Maintenance Convention Act, 2023, came into force in Ontario on June 8, 2023. This Act provides that the 2007 Convention has force of law in Ontario on and after the day it enters into force, in accordance with Article 60 of the 2007 Convention.
Manitoba’s legislation, The International Support and Family Maintenance (Hague Convention) Act, which received royal assent in 2022, was proclaimed with a coming-into-force date of January 1, 2024, for the 2007 Convention. The legislation includes a provision that states that the Convention is in force in Manitoba on the date that it enters into force, as determined by the Convention. Although not stated, this is a reference to Article 60 of the Convention. The amendments to the Divorce Act will come into force on the same date that the 2007 Convention comes into force for Canada, on February 1, 2024.
Andina van Isschot
Family Law and Youth Justice Policy Section
Department of Justice